Matthew Yglesias (h/t: Jon Henke) rightly takes some of his fellow libs to task for pontificating over how John Roberts’s nomination will supposedly end abortion rights (or at least the “constitutional” protections they currently enjoy) without bothering to count the remaining Justices’s votes first. He also rightly notes that the only abortion issue that really is in play is the much more gruesome “right” to partial birth abortion established in Stenberg v. Carhardt, an issue the Democrats would be foolhardy to bring up during the confirmation fight. Where Yglesias goes astray, aside from taking a gratuitous swipe at the three conservatives on the court as “far right,” is in his references to the three cases he thinks liberals should be concered about instead:
Much better cases where O’Connor was the swing vote include Alaska Department of Environmental Conservation v. EPA, which is about whether the EPA can step in when state environmental agencies don’t do their jobs; Rush Prudential HMO, Inc. v. Moran, about HMOs that screw over their clients; or Tennessee v. Lane about the Americans with Disabilities Act.
Yglesias’s description of these three cases is not entirely accurate, but that’s a side issue. The more important issue is that with all due respect to HMOs and the EPA, who the hell cares how those two cases were decided? Neither raised a constitutional issues, so if you’re really that worked up over the possibility that the issues raised in Alaska Department of Environmental Conservation and Rush Prudential HMO may end up being wrongly decided in the future, your time and energy would be better spent encouraging your Senator to sponsor an amendment to the underlying statutes rather than attempting to divine whether or not a given Supreme Court nominee is likely to do this for you. Tennessee v. Lane does raise an issue under the Constitution, namely, whether or not Congress should be allowed to ignore it. Four liberals and the retiring moderate say yes, as long as they make a perfunctory reference to a different part of the Constitution than the one they are flouting. Three conservatives and the other moderate say no. If you think Congress ought to be free to do Really Important ThingsTM without having to concern itself with such niceties as federalism or the Constitution, then Judge Robert’s appointment is cause for concern indeed.